Lead plaintiff Raquel Rubio was offered a Capital One MasterCard in 2004 with a “fixed” APR of 6.99 percent that could only go up under three conditions: if she failed to make a payment, went over her limit or had a payment returned. After having the card for three and a half years and complying with the terms of the contract, Rubio claimed her rate shot up to 15.9 percent. She sued Capital One for breach of contract, violation of the Truth In Lending Act and unfair competition. A federal judge dismissed the class action, ruling that Capital One satisfies its obligation to be clear and truthful by stating that the rates and fees were subject to change. Capital One reserved the right to “amend or change any part of your Agreement, including periodic rates and other charges, or add or remove requirements … at any time.” A three-judge panel revived the claims on appeal, ruling that Capital One can’t represent that the rates are “fixed” if they are not. “An APR disclosure that is not clear and conspicuous is ipso facto misleading,” Judge Betty Fletcher wrote for the Pasadena-based 9th Circuit panel. In a partial dissent, Judge Susan Graber said the case should have gone to a jury, which might have found the disclosure clear. “Was there a clear and conspicuous disclosure of the potential for raising the APR … when the solicitation advertised ‘a fixed rate of 6.99%’ but stated on the same page that the rates and fees were ‘subject to change’?” Graber asked (original emphasis). “In my view, there was.”